Making sense of online libel
Second of 3 parts
MANILA, Philippines – The recent Supreme Court decision on the Cybercrime Law was a mouthful for many, especially non-lawyers. (READ: Can't understand the jargon in the Cybercrime Law?)
The High Court ruled as constitutional most of the provisions in Republic Act 10175 or the Cybercrime Prevention Act. (READ: FULL TEXT: Cybercrime law constitutional – Supreme Court) But to make more sense of the Supreme Court decision and how it applies to specific situations, we ask key questions and provide answers that will make important provisions on online libel more understandable.
This is the 1st part of a list of questions that constitutes an explainer on the Supreme Court's decision. We initially focus on online libel.
1) How does the Supreme Court interpret the provision on online libel?
The Tribunal upheld the constitutionality of online libel, saying the provision in the new law “merely incorporates” what had been stated in the Revised Penal Code. The SC went further in making the distinction between online libel committed against public officials or public figures as against online libel committed against private or ordinary persons.
2) What’s the difference between libeling a public official and libeling a private individual?
For libel to hold water in the case of public officials or public figures, the Court said the “higher standard of actual malice” must be satisfied to attain conviction. Actual malice or malice in fact is committed “when the offender makes the defamatory statement with the knowledge that it is false or with reckless disregard of whether it is false or not.” In proving actual malice, the burden of proof lies with the offended party or the prosecution and not the accused. On the other hand, when the offended party is a private individual, malice is presumed in the offending article, with the burden of proof of showing otherwise being on the accused. Citing its previous ruling in Borjal v. Court of Appeals, the SC said “the law explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement. For his defense, the accused must show that he has justifiable reason for the defamatory statement even if it was in fact true.”
3) But isn’t truth a valid defense in libel, whether print or online?
While truth may be a defense, it is not a magic formula to exonerate one from libel. The SC reiterates that for truth to be a valid defense, the accused must show “good motive and justifiable ends” in making the statement.
4) Since the “higher standard of actual malice” is the rule when it involves public officials or figures, can I just make a defamatory comment or statement against a public official or public figure and get away with it?
No. In its ruling, the Court cited the case of Fermin v. People where entertainment columnist Cristy Fermin was found guilty of libeling Eddie Gutierrez and his wife, Annabel. In that case, the Tribunal affirmed the lower court’s ruling that Fermin committed not only malice in law, but also malice in fact “as there was motive to talk ill against the complainants during the electoral campaign.”
5) What is the Court’s sense on libel as stated in the Revised Penal Code and online libel under the Cybercrime Law?
The Court says “the penal code and implicitly, the cybercrime law, mainly target libel against private persons.” As such, “the Court recognizes that these laws imply a stricter standard of ‘malice’ to convict the author of the defamatory statement where the offended party is a public figure.” To the Court, “society’s interest and the maintenance of good governance demand a full discussion of public affairs.”
6) Under the new law, who is accountable for libel? If committed online, are the Internet service providers and content providers like Globe, Smart, Sun Cellular Google, Facebook, Twitter and even the Internet cafe liable for the offense as well?
The SC says only the author of the offending online article is liable.
7) How come only the author is liable for online libel? Shouldn’t the Internet providers and content providers be held liable as well?
The SC observes that the provision on online libel suffers from vagueness and overbreadth and may threaten the constitutional right of free speech. “A governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invalidating the area of protected freedoms.”
8) So if I “liked” a potentially libelous statement posted on Facebook, or re-tweeted it on Twitter for instance, I am not liable for libel? Doesn’t this fall under “aiding or abetting” cyber libel?
No. In the first place, the SC says “it is not clear if aiding or abetting libel (even) in the physical world is a crime. Commenting, liking, sharing or re-tweeting the potentially libelous content “are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting.”
9) What did the SC say on “aiding or abetting” cyber libel?
The SC has declared such provision in the law as null and void as it “encroaches on freedom of speech” for it “generates [a] chilling effect on those who express themselves through cyberspace posts, comments and other messages.”
10) If this is the case, can I freely comment or share on the alleged libelous statement without committing libel as long as I am not the original author?
Yes and no. The SC makes the distinction between the original post and a new post or comment “that creates an altogether new story.” In such a case, “then that should be considered an original posting on the internet.” The SC cites an imaginary situation: If someone posts the blog, “Armand is a thief!” and a Facebook friend “liked” or “shared” the original comment, or commented “Correct!” the latter merely agrees with the original statement and cannot be held liable for libel. But if the reader or Facebook friend or Twitter follower “does not merely react to the original posting but creates an altogether new defamatory story against Armand like ‘He beats his wife and children,’ then that should be considered an original posting on the internet,” the SC says.
11) Is there a difference as to penalty between print libel and online libel?
Yes. The penalty imposed for online libel is one degree higher compared with print libel under the Revised Penal Code.
12) What does this “one degree higher” actually mean?
Under the Revised Penal Code, libel carries a penalty of prision correccional in its minimum (6 months and 1 day) and medium periods (2 years, 4 months and 1 day to 4 years and 2 months). Under the Cyber Crime Prevention Act, the penalty for online libel “carries a 2-fold increase in the maximum penalty – from 4 years and 2 months to 8 years,” Chief Justice Maria Lourdes Sereno pointed out in her concurring and dissenting separate opinion.
13) What’s the rationale for the higher degree of penalty for cyber crimes, in this case, cyber libel?
The SC agrees with the Office of the Solicitor General that “there exists a substantial distinction between crimes committed through the use of information and communications technology and similar crimes committed using other means. In cybercrime, “the offender often evades identification and is able to reach far more victims or cause greater harm. The distinction therefore creates a basis for higher penalties for cybercrimes,” the SC says.
14) Can I be simultaneously charged for libel under the Revised Penal Code and under the Cyber Crime Prevention Act?
No. The SC states that published material on print and that posted online are essentially “identical material” and “cannot be the subject of two separate libels.” (To be continued) – Rappler.com
Do you have any questions regarding provisions in the Cybercrime Law? Do you wish to clarify parts of the Supreme Court's ruling on the law? Tweet your questions using the hashtag #cyberlaw to @rapplerdotcom, or email them to email@example.com.